The following is a comparison of the PTO’s numbers from December 2013 with September 2013 (at my last numbers update). Time to refer again to the PTO’s Data Visualization Center to see how things are going.
First Action Pendency – 17.4 Months
At the end of FY2013, first action pendency was 18.2 months, and has been steadily dropping during the last two fiscal years. That number is a significant improvement. The PTO continues to make significant improvements in this area.
“Traditional” Total Pendency – 28.6 Months
Traditional pendency is down from 29.1 months in September and over 35 months at the beginning of FY2011. Again, the PTO is making significant progress in this area.
Application Pendency with RCEs – 37.6 Months
This number is up from 37.1 months in September, but is down from 39.4 months at the end of FY2012. While the PTO is making significant progress on the front end with reducing first action pendency, the back end of applications requiring RCEs or appeals seems to be where the problem is being shifted.
Applications Awaiting First Office Action – 595,361
This number is up from 584,998 in September. The PTO generally makes a big push to reduce this number at the end of each fiscal year and since then it has risen 1.8%. It is a good reduction from 608,283 at the end of FY2012.
Patent Application Allowance Rate – 51.0%, 69.6%
The first number counts RCE filings as abandonments, while the second number does not, but counts them as continuing prosecution. These numbers are down from 53.5% and 70.7%, respectively, in September. The 18.5+% difference between the two numbers is, however, troubling. It seems that RCEs are still being forced; especially considering the next number.
RCE Backlog – 79,120
This number is up from 78,282 at the end of FY2013, a relatively modest 1% increase. Believe it or not, at the end of June, it was at 100,403. Hopefully, progress in this area is not being stalled as it needs to continue. The After Final Pilot Program is supposed to prevent examiners from churning RCE filings.
Number of Patent Examiners – 8,013
This number is up from 7,931 in September. In November, the PTO passed 8,000 examiners for the first time ever. Although improving examiner efficiency is a solid goal, as long as filings continue to increase, so should the number of examiners.
Pendency from Application Filing to Board Decision - 87.3 Months
The crisis at the Board continues, as the pendency is down from 88.5 months in September, but is merely back to June levels. Pendencies of over 7 years from filing to Board decision are not acceptable. New technologies become obsolete prior to getting a patent or decision by the Board. The PTO hired a number of additional patent judges and attorneys to deal with this issue, but the sharp increase in the number of appeals filed has made tackling this an impossibility. The Board now has significantly greater responsibilities with the beginning of the new post-grant review proceedings.
At the end of November (the Board doesn’t have its December numbers available yet), the Board had 25,151 pending appeals from ex parte application prosecution, a drop of 546 since August. 1,423 new appeals were filed since September (a pace for 8,538). This is down significantly from the 10,758 in FY2013 and from FY2012 when 12,433 new appeals were filed. Meanwhile, the Board disposed of 1,580 cases during FY2014 (a pace for 9,480). This is down significantly from the 11,934 during FY2013. They’re keeping pace here, but having a hard time denting the backlog.
In other types of cases, 166 inter partes review cases have been filed, 50 trials instituted and 23 concluded. 599 of these cases remain pending. 37 transitional business method cases were filed with 6 trials instituted. 1 of these have been concluded. No post grant review petitions were filed in October or November. 3 derivation petitions were filed in November, giving the Board 4 such pending cases. 7 new interferences were declared, with 11 concluded, leaving the Board with 47 still to be decided. 3 new ex parte reexamination appeals were filed, with 14 being disposed. 13 such cases remain pending. 32 inter partes reexaminations have been filed. The Board has decided 33, leaving an inventory of 104 cases pending.
The PTO is doing a good job on the front end. Significant progress is being made on first office action pendency. The problems begin, however, once an application reaches a final office action. RCE filings seem to be dropping somewhat, but the rate is still pretty high. Many or most of these are the result of examiners forcing them on applicants. This is very inefficient and increases application cost and pendency significantly.
The PTO has still not come up with a plan to deal with its crisis at the Board. Applicants deserve the ability to get a final agency decision on a patent application within a reasonable time frame. The Board’s added workload with numerous types of proceedings for it to decide has made things more congested. Presumably, if the proceedings work well, there may be many more filed in the coming months and years. This could make things even worse. Appeals must be decided more quickly.